APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-03005)
Before Weis and Garth, Circuit Judges, and Miller,*fn* Judge.
This appeal is from an order of the district court granting defendant-appellee's motion for summary judgment and denying plaintiff-appellant's cross-motion for summary judgment. Plaintiff's action under section 301 of the Labor Management Relations Act of 1947, as amended (29 U.S.C. § 185(a)), was for a permanent injunction to compel defendant to proceed with arbitration of an alleged grievance in accordance with the provisions of the parties' collective bargaining agreement. We affirm.
In May of 1977, one of the employees of International Paper Company ("IP"), Allen Axilrod, a member of the Philadelphia Printing Pressmen's Union No. 16, Aniline Division ("Union"), was injured in an auto accident unrelated to his employment and was placed on disability leave for six months. Upon conclusion of the disability leave in November of 1977, and not having heard from or been able by telephone to contact Axilrod, IP's plant superintendent wrote Axilrod on November 28, 1977, advising that he had used up his weekly disability benefits as of November 17 and granting him a leave of absence of sixty days. The letter, a copy of which was sent to the Union, stated: "If you can not return to work by Monday January 16, 1978 we will then drop you from our records." According to the Union's Business Agent, he telephoned IP's plant superintendent on November 28, 1977, and "orally notified him of our objections to the company's system of limited leaves of absence, and subsequent termination, especially because Mr. Axilrod was physically unable to return to work at the end of his leave of absence." Not having heard from Axilrod, IP terminated him on January 16, 1978. On or about January 24, Axilrod advised the plant superintendent by telephone that he was not yet physically able to return to work, and asked whether he would be able to return to work sometime in the future. He was informed that he had already been terminated "as he did not return to work during the period of his leave or otherwise contact the Company during that time."*fn1 Neither Axilrod nor the Union made any protest, oral or written, and the Union did not again contact IP regarding Axilrod's termination until December 15, 1978, when its Business Agent wrote:
The Union would like Management to reconsider their termination of Mr. Axilrod, and return him to his original place on the Company's Seniority List.
Meanwhile, on February 1, 1978, IP hired a replacement for Axilrod, and on March 1, 1978, the replacement, having completed his trial period, achieved seniority status.*fn2 At a meeting on December 21, 1978, between representatives of both parties, the Union's Business Agent repeated the request of December 15 that IP reconsider its decision to terminate Axilrod, but there was no challenge to the Company's action. Thereafter, letters were exchanged between the parties, the Federal Mediation and Conciliation Service, and the American Arbitration Association,*fn3 with IP consistently maintaining that no grievance had ever been filed with respect to Axilrod's termination and that it would, therefore, not proceed to arbitration. On August 16, 1979, the Union brought its action.
The collective bargaining agreement, in pertinent part, provides as follows:
Article 5 Adjustments of Complaints
For the purpose of this agreement, the term "grievance" means any dispute between the company and the union, or between the company and any employee, concerning the effect, interpretation, application, claim of breach of (sic "or") violation of this agreement.
Any such grievance shall be settled in accordance with the following ...